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Preserving And Protecting The Rule Of Law

February 18, 2020

Confidence in the rule of law is one of the most fundamental pillars of our shared democracy. Recent events involving the Department of Justice (DOJ) have put this issue in focus for us all – members of the legal profession as well as the general public. As former DOJ attorneys who now represent whistleblowers, this issue is one that’s very personal to us and of vital importance to our clients.Rule of Law

Roger Stone and the Sentencing Process

DOJ’s actions in connection with the upcoming sentencing of Roger Stone have triggered extraordinary press coverage and a great deal of criticism. Stone, a close associate of President Trump, was convicted in November of seven felonies associated with election malfeasance and obstruction of justice.

Prior to his sentencing, prosecutors assigned to Stone’s case analyzed federal sentencing guidelines applicable to his crimes and filed with the court a 26-page sentencing memorandum. This is standard operating procedure in federal prosecutions.

Starting in 1987, all federal sentences have been analyzed under guidelines created by the United States Sentencing Commission (“Guidelines”). These Guidelines were created with the specific goal of reducing bias in criminal sentencing and achieving more uniformity in sentencing across racial and economic classes. The Guidelines established sentencing ranges based on a carefully-crafted formula using two variables: the severity of the offense and the criminal history of the defendant.  These Guidelines were mandatory for over twenty years, until the U.S. Supreme Court in U.S. v. Booker, 543 U.S. 229 (2006), made them advisory. While advisory, the Guidelines remain the starting point for any sentencing recommendation from DOJ. Prosecutors must make recommendations that are consistent with the Guidelines’ goals of uniformity in sentences, even though courts are no longer strictly bound to sentence a defendant “within the range” of what the Guidelines advise.

DOJ Overrules Prosecutors’ Sentencing Recommendation

The original four prosecutors in the Stone case analyzed Stone’s conduct and criminal history under the Guidelines and recommended a sentence consistent with cases involving similarly-situated defendants. What happened next was highly unusual.

After prosecutors had filed their sentencing memorandum last Monday, President Trump took to Twitter to object, saying that DOJ’s sentencing recommendation was too harsh. Shortly after that, senior leadership at DOJ overruled the recommendation of the prosecutors and a new sentencing memorandum was filed, which argued for more lenient treatment for Stone.

Fallout from DOJ’s Intervention

DOJ’s decision to overrule its own prosecutors to favor a high-profile defendant after a presidential tweet ignited a firestorm of criticism. All four prosecutors assigned to the case resigned from it in protest. One of the prosecutors has resigned from DOJ entirely.

In the days following DOJ’s action, over 2000 former DOJ attorneys (and counting) have signed a letter criticizing Attorney General William Barr’s interference in Stone’s case, calling for his resignation, and expressing support for the original four prosecutors. In addition, multiple newspapers, including the Boston Globe, have called for Barr’s resignation, the Federal Judges Association announced an emergency meeting, and the American Bar Association issued a statement stressing the importance of judicial independence, the sound exercise of prosecutorial discretion, and avoiding the damaging effect of “a perception that the system is serving a political or other purpose rather than the fair administration of justice.” The ABA also called on “all public officials and members of the legal profession, whose sworn duty it is to uphold the law, to do everything in their power to preserve the integrity of the justice system.”

Why this Matters for the Rule of Law

As DOJ’s own Justice Manual says, “the rule of law depends on the evenhanded administration of justice.” In other words, we are all equal before the law. For our justice system to work, two things must be true. First, our laws need to be fairly applied and not subjected to political interference. Second, the public needs to have confidence in the administration of justice, without concern that the process is corrupt or unreliable. In other words, the criminal justice system both needs to be fair and to be perceived to be fair.

The first point is obvious enough. While no system run by human beings will ever be perfect, we have long claimed that the U.S. criminal justice system is the envy of the world, with its constitutional protections of individual liberties and judicial independence. While that narrative overlooks the many sad chapters when we as a nation did not uphold our stated ideals, we nonetheless have aspired to have a fair justice system, free of political interference and/or corruption infecting individual cases.

A generation ago, President Nixon famously ordered Attorney General Eliot Richardson and Deputy Attorney General William Ruckleshaus to fire Watergate Special Prosecutor Archibald Cox. Rather than do so, Richardson and Ruckleshaus resigned, and public outcry over Nixon’s actions accelerated the end of his presidency. Since then, DOJ has fought to safeguard its independence from improper interference from the White House, and presidents of both parties have largely observed this important guardrail. Put simply, DOJ is not to be used to prosecute political enemies or to protect political friends.

The second point is as important as the first. A perception that the administration of justice has been corrupted is arguably as damaging as the corruption or attempted corruption itself. It is vitally important that the public perceive that the system works the way it is supposed to work. Without that belief, why would any witness cooperate with police or investigators and risk reprisals and why would any whistleblower step forward?

Whistleblowers Must Have Confidence in the Rule of Law

Our clients must have faith in the justice system to report fraud or wrongdoing. Blowing the whistle takes courage and a belief that authorities will act fairly. The entire public benefits when whistleblowers step forward to report fraud and abuse in government programs and to help the government recover stolen taxpayer dollars. We are often asked by our clients or potential clients if a politically or financially connected defendant will be able to derail their case through influence at the political levels of DOJ or a state government. We routinely reassure them that state and federal prosecutors are public servants with the public’s interest at heart, and that both prosecutors and judges are free of improper influence. (This doesn’t mean that they always get things right or that we always agree with them; it means that we believe our clients will be listened to and treated fairly.)

Five of the six attorneys at our firm are former DOJ attorneys. Together, we have over 60 years of service to DOJ. We took our responsibilities then as seriously as we now take our responsibilities to our whistleblower clients. Our experiences as DOJ attorneys give us faith in the system and in the men and women of DOJ who do the day-to-day work of the people; we are continually impressed by the integrity and commitment of the attorneys at DOJ. Every DOJ attorney takes an oath to uphold and defend the Constitution and to faithfully discharge their duties. The uproar over Attorney General Barr’s actions in the Stone case shows that attorneys and the public understand how critical DOJ’s independence is to our country.

The rule of law is one of democracy’s most essential safeguards. We cannot take it for granted. Democracy is not self-executing. The Constitution is not self-executing. They survive only if citizens and governments demand that they be followed – and dissent when they are not. As members of the legal profession, and for the benefit of our clients, we adhere to the calling of the ABA to do everything in our power to preserve the integrity of the justice system.